HIGH COURT BLOCKS TERM LIMITS FOR CONGRESS IN A 5-4 DECISION

By LINDA GREENHOUSE

Published: May 23, 1995

WASHINGTON, May 22—
The Supreme Court ruled today that in the absence of a constitutional amendment, neither states nor Congress may limit the number of terms that members of Congress can serve. The vote was 5 to 4.

The sweeping decision, one of the most important the Court has ever issued on the structure of the Federal Government, had the effect of wiping off the books the term-limits provisions that 23 states have adopted for their Congressional delegations. Limits on terms for state officeholders are not affected.

The decision, which upheld a 1994 ruling by the Arkansas Supreme Court that the state's term-limits measure was unconstitutional, also dealt a potentially fatal blow to a popular movement that has won nominal support but little real enthusiasm from many politicians.

Four versions of a proposed term-limits amendment failed in the House of Representatives on March 29 after months of debate. With constitutional amendments requiring approval by two-thirds of each house of Congress and three-quarters of the state legislatures, three of the proposals that the House considered failed to get even a bare majority.

The Senate's Republican leaders plan to take up term limits next month, but the main supporters held out little hope of success and said they expected the issue to figure prominently in the 1996 Congressional elections.

With a majority opinion by Justice John Paul Stevens and a dissent by Justice Clarence Thomas, the decision revealed a Court riven by profound differences over the very nature and sources of legitimacy of the national Government.

The battleground over which the 157 pages of opinions raged was federalism, the same territory the Court plowed last month with an opposite 5-to-4 result when it broke with nearly 60 years of precedent and blocked an exercise by Congress of the power to regulate interstate commerce. The divisions on the Court were the same with the exception of Justice Anthony M. Kennedy, who voted with the majority last month in United States v. Lopez and joined the majority opinion today.

To Justice Stevens, who was joined as well by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, the profound question at the heart of the term-limits case was the continued vitality of the "revolutionary character of the government that the framers conceived" when the Constitution replaced the Articles of Confederation.

The people themselves, and not the states, became the building blocks of representative democracy, Justice Stevens said. "The right to choose representatives belongs not to the states, but to the people," he said, adding that members of Congress in turn "owe their allegiance to the people, and not to the states."

While chosen by separate constituencies, members of Congress "are not merely delegates appointed by separate, sovereign states," Justice Stevens said, but rather "occupy offices that are integral and essential components of a single national Government." Allowing individual states to set term limits or other qualifications for membership in Congress "would effect a fundamental change in the constitutional framework," he concluded.

Justice Thomas, joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Antonin Scalia, reached the opposite conclusion in a dissenting opinion that had as its premise a sharply different vision of the Federal Government.

Emphasizing that "the Federal Government's powers are limited and enumerated," Justice Thomas said that "the ultimate source of the Constitution's authority is the consent of the people of each individual state, not the consent of the undifferentiated people of the nation as a whole."

Consequently, he said, the states retained the right to define the qualifications for membership in Congress beyond the age and residency requirements specified in the Constitution.

Noting that the Constitution was "simply silent" on the question of the states' power to set eligibility requirements for membership in Congress, Justice Thomas said the power fell to the states by default.

The Federal Government and the states "face different default rules," Justice Thomas said. "Where the Constitution is silent about the exercise of a particular power -- that is, where the Constitution does not speak either expressly or by necessary implication -- the Federal Government lacks that power and the states enjoy it."

Justice Kennedy, whose swing vote was almost surely the focus of both sides' efforts, filed a brief concurring opinion -- 8 pages, compared with 61 by Justice Stevens and 88 by Justice Thomas. His opinion appeared to be addressed directly to the dissenters, his recent and frequent allies.

Justice Kennedy said the dissent's view "runs counter to fundamental principles of federalism," which he called "our nation's own discovery." He said "it denies the dual character of the Federal Government" to assert that have a political identity only as citizens of their own states.

He continued: "There can be no doubt, if we are to respect the republican origins of the nation and preserve its Federal character, that there exists a Federal right of citizenship, a relationship between the people of the nation and their national Government, with which the states may not interfere." The Arkansas term-limits measure at issue in the case "intrudes upon this Federal domain" and so "exceeds the boundaries of the Constitution," Justice Kennedy concluded.